The Sunday Pickle

For the Spam We Are about to Receive . . .

Flop.

Sometimes better, sometimes worse.
Energy Department estimates show a mass-produced fuel-cell engine
Would cost about four.

From being a source of energy production and into
The realm of fuel for transportation.
When dealing with highly contested resources,
Distributing the locking is key.

These wall or desk calendars are functional and beautiful to display at home.
In Cat I created two separate types, but now I am rethinking that choice.

It will be sold in New.

A Muslim has been elected to serve in the U.
The rituals of Hajj are complex, the schedule very demanding.

Located inside the mosque is the Ka'aba, a cube-shaped building.
You can then create custom text templates that use models created
In your designer to generate source code and other files.

They also discuss the differences between use-cases,
User journeys, and features.

Free for personal use. The Hajj has been performed by Muslims.
But non-Muslims are not issued visas for.

Sometimes better, sometimes worse.
Unfortunately it's not that simple.
For low-activity sites, and those using shared hosting,
SmarterPing will keep sites running smoothly and quickly.

These fingerprints can be used to ensure that your file is uncorrupted.

It's been a long day.

One Arizona Justice Gets It: Blakely & Unenumerated Aggravators

Long, long ago, when wishing still helped, and Blakely was new and full of promise (as well as threat), I picked up on the astonishing, but correct, observation by the Vera Institute in this September 2004 piece that Blakely should / could mean the end of using aggravating circumstances not specifically defined by a statute. (See this post on aggravating circumstances and common law crimes.) And I included this as one of the 12 questions that I thought Smylie should address. (It didn't.)

I don't believe I have seen the issue discussed in an opinion before.

Well, on December 3rd, the Arizona Supreme Court issued State v. Price, Case No. CR-06-0435-PR. The majority opinion reverses a sentence because of Sixth Amendment problems created by Blakely's application to Arizona's sentencing system.

Justice Hurwitz wrote a concurrence in Price that addresses precisely this issue:

Price raised only Sixth Amendment arguments on appeal and the Court’s opinion thus appropriately turns only on the denial of a right to jury trial. But even when a jury trial is afforded, a serious Fourteenth Amendment due process problem is presented if the “catch-all” is the only factor that makes a defendant eligible for a sentence beyond the presumptive term.

. . . .

A defendant has no notice, in advance of the conduct that exposes him to jeopardy for the “aggravated crime,” of precisely what is proscribed under the critical “catch-all” element. It is as if the criminal code had one punishment for theft, and another for aggravated theft, the former consisting of theft simpliciter and the latter consisting of the elements of the theft plus “anything else the court or the state may someday later find relevant.”

Slip op. at ¶¶26-29. (The Arizona Supreme Court numbers paragraphs, which has to be the future to accomodate web citation.) Because Price did not raise the 14th Amendment Due Process problem, Justice Hurwitz is "content to leave final resolution of this conundrum to another day."

Doug Berman calls the "conundrum" "another tough Blakely nut" in his post on Price. I don't think it is either a conundrum or a tough nut. It's just an issue that no one has raised. The focus has been entirely on Blakely's Sixth Amendment implications. Even Price didn't raise the issue in his appeal. And he obviously had at least one justice waiting to return serve.

With the April 2005 amendments to Indiana's sentencing statutes and their evisceration of Blakely in Indiana well behind now, one might think that this issue is of purely academic interest among Hoosiers. It's just possible, though, that the 14th amendment common law crime claims that were not raised in direct appeals would provide some fertile post-conviction ineffective assistance claims.

Thanks to Doug Berman's work and his Blakely in the States mashup on Sentencing Law & Policy for making it so easy to catch up and keep up.

Question Presented in Edwards

Here's the question presented from the order granting cert. in Edwards:

May States adopt a higher standard for measuring competency to represent oneself at trial than for measuring competency to stand trial?

Cert. Granted in Indiana v. Edwards

The U.S. Supreme Court granted the State's cert. petition in Indiana v. Edwards Case No. 07-208. (Link to SCOTUS docket here.)

The issue in the case is whether someone who is competent to stand trial is therefore competent to represent themselves. The Indiana Supreme Court said, "yes." Does anyone think that cert. was granted to affirm?

The decision of the Indiana Supreme Court from last May in Edwards v. State is here (written by Justice Boehm). The Court of Appeals decision (written by now-Chief Judge Baker), which the Indiana Supreme Court vacated is here. But this is a case in which the ISC granted transfer to make the holding its own. It did not disagree with Judge Baker.

In the category of "Be Careful What You Wish For," Justice Boehm wrote in Edwards:

The State responds that more recent authority casts doubt on the continued vitality of the authorities on which Edwards relies. We agree that this contention has some force, but we conclude that we are bound by United States Supreme Court precedent and that the State must address its contention to that Court.

Guess the Indiana AG's Appeals Division took him up on the dare.

The Indiana Supreme Court's assertion that is bound by SCOTUS precedent should be taken with a grain of salt. On at least two occasions, it has explicitly said that is not bound by Jackson v. Virginia. A federal district court has said that those decisions are "unfortunate." Well, yes.

I'll have to look into whether this is a first: a SCOTUS cert. grant in a criminal case on a petition by the State.

Bassett: Headphones for All Prosecutors

For an eye-opener, go have a listen to yesterday's oral argument in Bassett v. State. (RealPlayer required).

Maybe I've drunk too much defense Kool Aid, but I was fairly shocked to see the Indiana Attorney General's Office argue with a straight face that it's just fine for a prosecutor to listen to nine pretrial jail tapes of telephone conversations between a lawyer and his client--and in an LWOP case--without disclosing the fact to the defense or the court . That he had done so just happened to pop out at a bench conference toward the end of the trial.

At about 34 minutes into the argument the deputy A.G. actually says it would be just fine for a prosecutor to listen to such calls with the intent of discovering the defense's strategy or other information that would be useful at trial. A defendant should have to show harm, according to the DAG.

That said, having sobered up from the Kool Aid a bit by taking a tour of a number of cases, I am shocked that the authority on whether one has to show prejudice in such circumstances is remarkably split. The leading U.S. Supreme Court case relied upon by Basset during the argument is Weatherford v. Bursey, 429 U.S. 545 (1977). That was a § 1983 case. It says that once there is an intentional invasion of the attorney-client relationship, a Sixth Amendment violation is established if there is a realistic possibility of benefit to the State or harm to the defendant. This has been watered down in many circuits in various ways.

The best description of the split comes from Justice White's dissenting opinion from the denial of cert. in Cutillo v. Cinelli, 485 U.S. 1037 (1988):

In Weatherford v. Bursey, 429 U.S. 545, 558 (1977), we held that establishing a violation of a defendant's Sixth Amendment right to counsel requires a showing of “at least a realistic possibility” of prejudice to the defendant or benefit to the prosecution. See also United States v. Morrison, 449 U.S. 361, 365-366 (1981). This case presents the issue of who bears the burden of persuasion for establishing prejudice or lack thereof when the Sixth Amendment violation involves the transmission of confidential defense strategy information. The First Circuit held that where confidential defense strategy information is transmitted to the prosecution and the defendant makes a prima facie showing of prejudice, the burden then shifts to the prosecution to prove that there was no prejudice to the defendant from the disclosure. Cinelli v. City of Revere, 820 F.2d 474, 478, 480 (1987); accord, United States v. Mastroianni, 749 F.2d 900, 907-908 (CA1 1984). This position conflicts with the approach of other Circuits of requiring the defendant to prove prejudice. United States v. Steele, 727 F.2d 580, 586-587 (CA6); United States v. Irwin, 612 F.2d 1182, 1186-1189 (CA9 1980). It also conflicts with a third position that once a defendant shows that the prosecution has improperly obtained confidential defense strategy information or has intentionally placed an informer in the defense camp then no showing of prejudice is required, for those acts constitute a per se violation of the Sixth Amendment. United States v. Costanzo, 740 F.2d 251, 254-255 (CA3 1984). Because of these conflicting approaches among the Circuits, I would grant certiorari.

I don't know what a "prima facie showing of prejudice" would look like in the circumstances of Bassett's case. During the argument, Justice Boehm made the point that to get into the question of prejudice, the privileged communications would have to be further revealed. I don't think that is much of a problem. Once the prosecutor had listened to the conversations, the privilege was blown--though maybe not.

More difficult would be trying to figure out what use was made of the information. You'd have to listen to the tapes, read the trial record, talk with the prosecutor, and then somehow figure it all out. If the phone conversations were just about the weather, then maybe the process would be easy. The actual usefulness to the State of any discussion between client and lawyer of trial strategy, witnesses, etc., would be extremely hard to parse out, I should think.

And all of this gets away from the exact words of Weatherford: "the realistic possibility of injury to Bursey or benefit to the State . . . ." Eavesdropping, albeit after the fact, though before trial, on nine phone conversations would seem to create quite a realistic possibility of benefit to the State without having to get into all the ugly details and assessments.

Given Weatherford's explicit language, even with the AEDPA, the case seems pretty well teed up for habeas.

I certainly hope the Indiana Supreme Court does not come up with the idea that phone calls to jails and prisons are not privileged, because everyone knows they may be recorded. The rule should be that they are privileged even though they may be recorded. Any other rule will make criminal defense practice almost impossible--as Joe Cleary pointed out today in the argument. I haven't looked up fed law on that subject. Maybe someone else knows what it is.

Comments?

Pleas Please Me--But Not the Indiana Courts of Late

Doug Berman has this post over at Sentencing Law & Policy about the occasionally extreme penalties people pay for going to trial, especially in white-collar cases. I'm not going to re-post his post, but he says, "I think about these issues a lot because the most extreme sentence almost always involve some kind of trial penalty . . . ." He concludes the post:

I wonder if anyone has tried to do a serious empirical analysis of the extent of the trial penalty in federal white-collar prosecutions (post Sarbanes Oxley). My anecdotal impression is that the trial penalty in some large corporate cases is now decades long. If some Justices or legislators really cared about the right to a jury trial, it is high time some more attention is given to this ugly reality.

There is an ugly converse reality in Indiana. Pleading guilty is not worth much as a mitigating circumstance. There has been a deluge of cases in the last months, it has seemed to me, in which the Court of Appeals has said that the plea agreement itself contained whatever benefit a defendant should hope to reap from pleading guilty. There were two such cases in a day back on November 16th, both NFP: Chavez v. State (Judge Najam writing) and Sanders v. State (Judge Vaidik writing).

Here is what Judge Najam writes at the end of Chavez after a long quote from Justice Rucker's rehearing opinion in Anglemeyer (Ind. 10/30/07):

[T]he State agreed to dismiss the charge of attempted murder, as a Class A felony, in return for Chavez’s guilty plea to aggravated battery, a Class B felony. The State also agreed to cap the maximum sentence, reducing Chavez’s maximum possible sentence by four years. As such, Chavez received a substantial benefit by entering into the plea agreement. Thus, the trial court did not abuse its discretion when it did not identify his guilty plea as a significant mitigator.

Slip op. at 6. (The original opinion in Anglemeyer (Ind. 6/26/07) was the court's not entirely convincing effort to deal with one mess created by the 2005, post-Blakely, elimination of presumptive sentences in favor of "advisory" sentences--namely, what's an appellate court to do when a sentencing judge can do just about anything for any reason? Would have been nice if they could have pushed up the date of the opinion a couple of days to 6/24, Blakely's third birthday.)

Here's the language from Sanders:

[F]aced with two Class B felony convictions, Sanders was susceptible to a potential maximum sentence of forty years (consecutive twenty-year sentences for both counts). However, in exchange for his plea, Sanders’ maximum sentence was capped at eighteen years, twenty-two years below the maximum possible. This was a substantial benefit. See Anglemyer v. State, --- N.E.2d ---, 2007 WL 3151747 (Ind. Oct. 30, 2007) (“Anglemyer was exposed to a potential maximum sentence of twenty-eight years. In exchange for his plea, Anglemyer received the benefit of a twelve-year reduction in sentence. This alone was a substantial benefit.”).

Slip op. at 3-4.

But the problem is not the Anglemeyer rehearing opinion. The practical elimination of guilty pleas as mitigating pre-dates October 30th. From some quick research, the root seems to be in a case written by Chief Justice Shepard in 1999, Sensback v. State, 720 N.E.2d 1160 (Ind. 1999). There he writes for the court, without citation to any preceding authority:

A guilty plea is not automatically a significant mitigating factor. . . .

. . . .

While Sensback now argues that the likelihood of being sentenced to life without parole was too remote a possibility to be adequate consideration for her plea, there was a time when she appeared to consider it worth avoiding. Sensback received benefits for her plea adequate to permit the trial court to conclude that her plea did not constitute a significant mitigating factor.

720 N.E.2d at 1165. (Footnote omitted).

Without going into the detail of the cross-talk among the cases after Sensback, which seems, after possibly hasty reading, to pit Justice Sullivan against the Chief Justice's view, it had always seemed that there were two 800-pound gorilla per se mitigators in Indiana sentencing: lack of criminal history and a guilty plea. (Mental illness is a possible candidate for a third gorilla.) In 1982, in Williams v. State, 430 N.E.2d 759, 764 (Ind. 1982), the Indiana Supreme Court said:

[A] defendant who willingly enters a plea of guilty has extended a substantial benefit to the state and deserves to have a substantial benefit extended to him in return. Both this Court and the Federal Courts have recognized the state's legitimate interest in encouraging the entry of guilty pleas and in facilitating plea bargaining which is mutually beneficial to both a defendant and the state.

And to mention just one bit of the cross-talk since Sensback, Justice Sullivan's opinion in Francis v. State (Ind. 11/9/2004) goes so far as to say in footnote 2 that "a sentencing court is inherently aware of the fact that a guilty plea is a mitigating circumstance . . . ."

The old regime seems to have been that one got credit for pleading guilty, period. Maybe more, maybe less, but the more or less did not depend on what the State had done by way of dismissed charges or sentencing caps in a plea agreement. The courts did not go behind the fact of a plea agreement to see what kind of a deal it was. That's really what Williams says. The plea itself benefits the State, regardless of any agreement's terms.

That is, the State used to have an incentive to overcharge just to induce a guilty plea in exchange for dismissed or reduced charges. That has not changed. But now there is an additional incentive to overcharge: the more the State appears to give away in a plea agreement, the less the plea agreement will mean as a mitigator. And it would seem up to a defendant to argue that charges dismissed were either meritless or meaningless because of double jeopardy problems. In the cases I've skimmed, those arguments don't get very far.

I really am not a sentencing maven. Blakely's divinity for me derives (derived?) from its factless formalism that reshaped, for a while, every piece of criminal process it touched. Maybe someone out there who knows more about sentencing has a different take on what's going on with pleas as mitigators.

Comments?

Danforth v. Minnesota: Major Geek Time

For Blakely in Indiana, the only game left in town is retroactivity. The argument in Danforth v. Minnesota last week has brought me out of lurking. The question, bluntly put, is whether the States are stuck with the U.S. Supreme Court's retroactivity analysis as stated in Teague v. Lane. For all the background, SCOTUSBlog has a wiki with summaries galore and the briefs. The oral argument link (directly to the PDF file) is here.

There has been a great deal of discussion of this case. SCOTUSBlog's post here, Sentencing Law & Policy here (among a number of posts), and Orin Kerr on the Volokh Conspiracy here. The SL&P post also points to Ann Althouse's post, in which she describes the case as "perhaps the most interesting case I've seen in 20 years."

I'm with Doug Berman: this is the case for the law geek. Maybe for the Ueber-Geek. And there is a lot of geeky goodness in the posts I've linked to above.

But if you read those posts, if you read the argument itself and see what the Nine Geeks were interested in, it looks a lot like a raw, "It is-It ain't" argument.

I want to suggest in what follows that all of the geeks are failing to think about this problem correctly. I don't think Teague has anything to do with "federal common law," or the supremacy of Supreme Court decisions. The solution to the problem is that there is no problem at all, because Teague does not speak to the state courts.

The short explanation is that because States do not have to offer collateral review at all, they can quite literally do whatever they like when they do offer collateral review. What they do or do not do has consequences, but those consequences are never a result of having failed to "apply" federal law.

To fellow geeks who think that solution is question-begging, I offer the following more formal presentation:

1. Teague is only about what rules decide whether a new rule of constitutional procedure applies to cases retroactively on collateral review.

2. The question in Danforth is whether those rules apply to state as well as federal court decisions.

2. The federal Constitution does not require that States offer collateral review of convictions or sentences at all.

3. Because States do not have to offer collateral review at all, they may do whatever they wish, subject to certain federal due process procedural limitations, if they do offer collateral review. That is, nothing prevents States from saying, for example, that Strickland v. Washington requires a post-conviction petitioner to show that his lawyer was wearing an off-putting tie during closing argument in order to obtain relief.

4. There are great benefits to the States, however: a) if they do offer collateral review; and especially b) if they correctly apply the two-prong analysis that Strickland actually announced.

5. The great benefits may be more like the avoidance of great penalties for failing to offer collateral review at all or for failing to follow Strickland as written. In either case, a prisoner may file a habeas petition in federal court and get de novo review of his claims, almost as if it were a direct appeal--though not quite, because of Brecht v. Abrahamson and its limitation on harmless-error analysis.

6. But again, nothing requires that state courts apply Strickland at all or even as written. So when state courts do "apply" federal law as written, they're really only saying that as a matter of state law, we're doing something that looks like what the feds do. They are not applying federal law directly.

7. It follows that Teague has nothing to say directly about collateral review in state courts. It's effect is entirely indirect. And that indirect effect can only seen in cases in which SCOTUS has held a case to be fully retroactive and in States that have no collateral review or don't at least offer relief where Teague would as well.

How about a metaphor? The state and federal courts have two completely distinct sandboxes. The state courts do not have to play at all in their sandbox; and if they do play, they can build whatever sort of castles they like. If the state court castles happen to look enough like the castles in the federal courts' sandbox, though, federal habeas review is a lot kinder to the state decisions.

(If you don't like sandboxes, consider that you probably didn't want to read a version of the discussion I had this afternoon on this subject in which I invoked isomorphisms, homomorphisms, and homology groups. That was ugly.)

Suppose, now, that SCOTUS were to declare Blakely fully retroactive to cases on collateral review. Again, nothing requires that the States honor this. A State that has no collateral review at all would certainly not be required to create it just to accomodate a SCOTUS Blakely retroactivity holding. What would happen is that prisoners in a State without collateral review at all would go across the street to federal court with their habeas petitions.

There is one hole, at least, to this highly (overly?) formal take on the Danforth case. If state courts do not actually apply federal law in post-conviction proceedings but are merely aping it, as it were, SCOTUS would have no jurisdiction to take cert. petitions from those proceedings. But we know that it does.

Maybe it shouldn't and should have to wait for cert. petitions in habeas cases. After all, because States do not have to consider federal claims as part of collateral review.

I also undertand that this is an unusual way to think about state post-conviction proceedings. Section 2254 does, after all, speak in terms of "unreasonable applications of federal law." But I won't be deterred from suggesting that even Congress has failed to think correctly about what state courts are really doing in post-conviction proceedings.

Indiana happens to do Teague, but not directly. The Indiana Supreme Court adopted it as its own. Of course, under my approach, the Indiana Supreme Court could only "do" Teague indirectly. State collateral proceedings are always a matter of state law.

I cannot recall in which argument it was, but in a death penalty case, I believe, Justice Sullivan asked the Deputy A.G. whether the court should follow, lock-step, as it develops, SCOTUS's Teague jurisprudence. The answer was a predictable, "Yes."

Correct thinking or the lack of it aside, I really do think the key to Danforth is the purely voluntary availablity of state collateral review: Teague is only about collateral review.

Comments would be great.

What a subject to return with and to.

Jones v. State: No Difference between the Substance of Cocaine and Heroin?

From yesterday: Thomas Jones v. State, Court of Appeals No. 49A05-0604-CR-211 (Ind. Ct. App. March 27, 2007). What can one say? The State amends a narcotics charge a week before trial, changing the controlled substance from cocaine to heroin. Because the charge was still under the same statute and section; and because the class of felony was the same, the court says that the amendment was merely "a matter of form." And this even though the State knew the substance was heroin and not cocaine in July 2004. The State made the change on March 15, 2006, almost two years later, and the trial began on March 20, 2006.

This cannot be right after Fajardo v. State, which the Indiana Supreme Court decided in January. Or let me put it differently: we'll see if Fajardo is worth taking seriously, if the Supreme Court grants transfer. Fajardo was a signal case, finally taking seriously the statutory limitations on amendments to charging informations.

The deal is that the State may amend charging informations at will, if the amendment is a matter merely of form and not substance. If an amendment is one of substance, then the State has to amend substantially before trial. (If you want the gory details of the statute, it's set out in Fajardo, or you can get to it here: Ind. Code 35-34-1-5.)

Fajardo purported to put some teeth in the statute and to clean up the awful mess in the cases on the subject going way, way back. The new test to determine if an amendment is one of substance or form has not changed much. As set out in Fajardo, without citations, it's simply this:

[A]n amendment is one of form, not substance, if both

(a) a defense under the original information would be equally available after the amendment, and

(b) the accused's evidence would apply equally to the information in either form.

And an amendment is one of substance only if it is essential to making a valid charge of the crime.

This doesn't make a lot of sense to me, since the test does not seem to cover the entire universe of possibilities. But under either test, changing cocaine to heroin seems to me almost obviously a change of substance. In Indiana, you don't get to charge someone with possessing any old controlled substance and then let the cat out of the bag about what substance it was at trial. So if you charge cocaine, it is a complete defense to the charge that it was heroin. And Jones's evidence that the substance was, in fact, heroin and not cocaine, might apply "equally" in some sense under both a cocaine and heroin charge. But not "equally" in any sense that Jones would appreciate.

And if you go to the second part of the test, possessing cocaine and possessing heroin are two different crimes, unless you buy Judge Mathias's opinion that, in essence, says that crimes are the same so long as they are charged under the same statutory section. But to repeat, I don't think that can be correct if possession of heroin is a complete defense to possession of cocaine.

In fact, it seems to me that this multiplicity of tests is unnecessary. What about simply the following, which partially comes out of the law regarding variances: If the case had been tried on the charge as made before the amendment, would the evidence sought to be introduced by the State have been sufficient for conviction under the pre-amendment charge? If not, then the amendment is one of substance. In Jones, since proof that the narcotic was heroin could not support the original charge that it was cocaine, the switch from cocaine is one of substance.

There's a nice case on this involving resisting law enforcement: Bonner v. State, 789 N.E.2d 491 (Ind. Ct. App. 2003). Essentially, the State does not get to change during trial which law enforcement officer was resisted:

In this case, the names of the particular officers from whom Bonner fled were essential to the proper description of the State’s two separate resisting charges, and the State had to specifically identify the officer or officers whose arrest efforts Bonner allegedly resisted in each information. Given the number of officers involved in the police chase and the number of ways Bonner was alleged to have fled from the different officers, the separate Resisting charges would not have provided Bonner with sufficient information to anticipate the proof that would be adduced against him with regard to each charge if the officers pertinent to each separate offense had not been particularly identified.

I don't see how the switch from cocaine to heroin is any different.

But the variance approach doesn't quite cover matters either. And, as the current test has it, something has to be included about defenses. If someone has an alibi defense all ready to go, the State should not get to change the date, time, or place of an offense at the last minute.

I guess, as always, we'll see what happens. It would be ashame if transfer were not sought and granted. It's an ideal case for the Indiana Supreme Court to give a meaningful edge, either way, to the law of amendments.

Oral Argument about Blakely and Belated Appeals

If you read the Indiana Law Blog--and who doesn't?-- then you probably saw this item about an oral argument in the Indiana Supreme Court about Blakely and belated appeals. Well, the argument did happen last week. And although I did not make it into the attorney list in the web description, I did do about 15 minutes of the argument.

The irony is that my 15 minutes of fame had nothing to do with Blakely, because my client's case (Moshenek in the Court of Appeals) had nothing to do with Blakely.

And here's how it happened. A friend of mine became a judge. I was "babysitting" the case on transfer. Suddenly I find myself going to the Little Big Top (SCOTUS has to be The Big Top) in a case not mine and about which I know almost nothing, on an issue I know almost nothing about (Post-Conviction Rule 2 and belated appeals), and I don't get to talk about Blakely--the other guy does. (And John Pinnow did a brilliant job of it too, I think.)

Christina Klineman had the unenviable job of doing rebuttal for three cases not her own in the four-case scrum. What a job she did.

Anyway, here's the direct link to the argument. (RealPlayer required and will open on clicking the link.) I think I spoke loudly enough for the court. The microphone is another matter. John Pinnow does the first 17 minutes or so about Blakely. I do the next 15 about Post-Conviction Rule 2. The State does its 40 minutes. Finally, Christina Klineman cleans up after the mess left by the State.

From total ignorance, I might have become the world expert at the moment on Indiana Post-Conviction Rule 2. And I hope the Indiana Supreme Court doesn't do anything to change that. If there was any point I tried to get across that was not specifically related to my client's case, it was the Post-Conviction Rule 2 is older than dirt--actually a 1970 codification of the common law--and that there is no reason Blakely should deform what has been the uniform analysis under the rule.

Also, as I said to the court, Post-Conviction Rule 2 is an odd sort of creature. There is a fundamental constitutional right to an appeal in a criminal case. It's right there in the Indiana Constitution. Post-Conviction Rule 2 puts the burden, the cases say, on defendants to prove that they did not waive their right to an appeal. The cases say that; the rule doesn't. And I cannot think of another context in which the law requires someone to prove that they did not waive a fundamental constitutional right. It (almost) always works the other way 'round.

Here are the links to the Court of Appeals opinions in the other cases: Gutermuth, Boyle, and Medina. The Supreme Court has granted tranfer in Gutermuth already. Transfer is pending in the others. Medina was NFP.

For some background, here are links to my previous posts about what I called Blakely "pop-up" appeals:

More about Post-Conviction Rule 2: When Plain Language Means Its Opposite (10/19/06)

Baysinger: Another Blakely Pop-Up Belated Appeal (10/13/06)

Gutermuth: The Blakely WayBack Machine (6/8/06)

And a final note. When you start into the history of the law, all kinds of things pop up--not just Blakely appeals. Possibly the best bit of irrelevance I stumbled upon was Sanders v. State, 85 Ind. 318 (1882). Turns out that Mr. Sanders confessed to the murder of his wife on the advice of his lawyer. The alternative was a lynch mob. Pretty good advice that lawyer gave. Here's a snippet from the facts:

The facts stated and proved are these: In April, 1878, Josephine Sanders, the wife of the appellant, was slain by a pistol shot; at the time she was in a room alone with her husband, and he did not and could not give any account of her death; he was then, and had been for many years, addicted to the use of alcoholic liquor and opium to such an extent that he had probably become insane; he was arrested shortly after the death of his wife; his case came on for trial; his counsel and many witnesses of unquestioned veracity testify that at the time of his trial he was insane; the homicide had aroused an intense feeling in the vicinity of the county-seat, where the killing was done, and the case put to trial; threats were made of lynching by a mob; counsel prepared an affidavit for delay, but feared to present it lest the mob should seize and hang the accused; the sheriff of the adjoining county came to the county-seat of Clay county and warned the sheriff of that county of imminent danger from an armed mob; a jury had been empanelled and a plea of not guilty entered, but so great was the threatened danger that counsel, to save, as they believed, their client's life, withdrew the plea of not guilty, entered a plea of guilty, on which, without evidence, the jury returned a verdict of guilty, and a life sentence was immediately pronounced upon the verdict by the court; the accused was at once hurried to the train and conveyed to the State's prison. For the purpose of clearly exhibiting the situation at the time the plea of guilty was entered, we quote from the testimony of the gentlemen who were then appellant's counsel, and who are men of high character and undoubted integrity. One of them says: "As one of his counsel I urged and demanded of him a plea of guilty, with which I pledged myself to save his life; his counsel all concurred; Sanders always denying any knowledge of the homicide; his counsel were responsible for the act of pleading guilty, believing at the time that it was the only course by which his life might be saved."

The Indiana Supreme Court stepped up to the plate and reversed Mr. Sanders conviction, even though procedurally there was no real way to do it:

It is almost a mockery to call that a trial, or a judicial hearing, which condemns an accused upon a plea of guilty forced from his reluctant counsel by threats of an angry and excited mob, and interposed because they believed that to proceed with a trial upon a plea of not guilty would result in the hanging of their client by lawless men. A man who makes a promissory note because of fear is entitled to relief. A man who executes a deed under duress is entitled to judicial assistance.

The court found itself in a pickle, because it could not grant a new trial where there had been no trial. An appeal would have been useless with the confession in the record. So, if I read the case correctly, the Sanders court pulls a writ of error coram nobis out of the English common law hat--with some modifications--and saves the day. And from Sander on, that was post-conviction relief in Indiana until the Post-Conviction Rules.

Before the Hour of Sunrise . . .

There is an execution on the horizon: May 4th. In this order, the Indiana Supreme Court today denied David Leon Woods' request to file a successive post-conviction petition. The online docket sheet shows the order setting the execution date.

Because the issue is access to successive post-conviction relief, I very much doubt a federal court is going to interfere.

Oliver: An NFP Reversal for the Denial of Counsel

There was an interesting NFP reversal today: Oliver v. State, Court of Appeals No. 16A01-0609-CR-413 (Ind. Ct. App. March 23, 2007) (Bailey, Vaidik, Barnes). The court unanimously reversed a marijuana misdemeanor conviction, because the trial court forced Ms. Oliver to go to trial without a lawyer. Or at least the trial court did not make sufficient inquiry into the matter.

Another NFP reversal. A misdemeanor conviction that the Indiana Supreme Court is unlikely, I would guess, to by much interested in. Especially if it's NFP.

So the question is: do judges on the Court of Appeals actually try to hide their cases among the NFP's? I don't have the statistics to say one way or the other. And the Supreme Court certainly grants transfer in a fair number of NFP's in which the Court of Appeals has granted a criminal appellant relief.

I will say that were I the Deputy Attorney General on this case, I'd ask the court to publish the opinion. And I'm a little surprised the court didn't publish on its own. There aren't that many Indiana cases around on forcing defendants to trial without a lawyer.

Just warming up on the NFP's.